ORDER

1. RESPONDENT 1 IS REPORTED TO HAVE DIED. HIS LEGAL REPRESENTATIVE IS ALREADY ON RECORD AS RESPONDENT 2. PRAYER FOR CORRECTION OF CAUSE TITLE IS ALLOWED.

2. LEAVE GRANTED.

3. A SUIT FOR SPECIFIC PERFORMANCE OF AN AGREEMENT TO SELL WAS FILED ON 29-7-1999. THE COURT FEE PAID WAS DEFICIT BY RS 1,23,464. THE DEFICIT COURT FEE WAS SUPPLIED ON 23-2-2000. ON 10-4-2000, THE TRIAL COURT REGISTERED THE SUIT. ON BEING NOTICED, THE DEFENDANTS FILED AN APPLICATION UNDER ORDER 7 RULE 11 OF THE CODE OF CIVIL PROCEDURE (FOR SHORT "CPC") SEEKING REJECTION OF THE PLAINT FOR NON-PAYMENT OF COURT FEE. THE TRIAL COURT VIDE ORDER DATED 3-11-2001 CONDONED THE DELAY IN PAYMENT OF COURT FEE AND REJECTED THE APPLICATION UNDER ORDER 7 RULE 11 CPC FILED BY THE DEFENDANT-RESPONDENTS.

4. FEELING AGGRIEVED BY THE ORDER OF THE TRIAL COURT, THE DEFENDANTS PREFERRED A CIVIL REVISION IN THE HIGH COURT WHICH HAS BEEN ALLOWED. THE HIGH COURT HAS SET ASIDE THE ORDER OF THE TRIAL COURT DATED 3-11-2001 AND DIRECTED THE PLAINT TO BE REJECTED FORMING AN OPINION THAT IN VIEW OF THE PROVISO APPENDED TO ORDER 7 RULE 11 CPC, THE COURT COULD NOT HAVE EXTENDED THE TIME FOR PAYMENT OF DEFICIT COURT FEE.

5. IN OUR OPINION, THE HIGH COURT WAS NOT RIGHT IN FORMING THE OPINION WHICH IT DID. THE PROVISO TO ORDER 7 RULE 11 CPC IS ATTRACTED WHEN THE TIME FOR PAYMENT OF COURT FEE HAS BEEN FIXED BY THE COURT AND THE COURT FEE IS NOT SUPPLIED WITHIN THE TIME APPOINTED BY THE COURT. IN THE CASE AT HAND, THOUGH THE PLAINT AS ORIGINALLY FILED WAS NOT AFFIXED WITH THE REQUISITE COURT FEE STAMPS, BUT BEFORE THE SUIT WAS REGISTERED, THE DEFICIT COURT FEE WAS SUPPLIED. THE PRESENT ONE IS NOT A CASE WHERE THE COURT HAD FIXED THE TIME FOR PAYMENT A

OF REQUISITE STAMP PAPER WHICH WAS NOT DONE WITHIN THE TIME FIXED AND THEREAFTER THE PLAINTIFF WAS CALLED UPON TO SEEK AN EXTENSION OF TIME. HAD THAT BEEN THE CASE, THEN, UNDER THE PROVISO, THE PLAINTIFF WOULD HAVE BEEN CALLED UPON TO ASSIGN AND SHOW THE AVAILABILITY OF ANY CAUSE OF AN EXCEPTIONAL NATURE FOR DELAY IN SUPPLYING THE REQUISITE STAMP PAPER WITHIN THE TIME FIXED BY THE COURT. THE TRIAL COURT WAS ALSO EMPOWERED UNDER SECTION 149 CPC TO EXTEND THE TIME. IN THE PRESENT CASE, THE ORDER PASSED BY THE TRIAL COURT ACCEPTING THE DEFICIT COURT FEE PAID ON 23-2-2000, THEREAFTER REGISTERING THE SUIT ON 10-4-2000 AND CONSEQUENTLY THE ORDER DATED 3-11-2001 REJECTING THE DEFENDANT RESPONDENTS APPLICATION UNDER ORDER 7 RULE 11 CPC WERE PERFECTLY IN ACCORDANCE WITH LAW AND WITHIN THE DISCRETION CONFERRED ON THE TRIAL COURT WITH WHICH THE HIGH COURT OUGHT NOT TO HAVE INTERFERED IN EXERCISE OF THE C JURISDICTION VESTED IN THE HIGH COURT UNDER SECTION 115 CPC. THE ORDER OF THE HIGH COURT, IF ALLOWED TO STAND, IS LIKELY TO OCCASION FAILURE OF JUSTICE.

6. THE APPEAL IS ALLOWED. THE IMPUGNED ORDER OF THE HIGH COURT DATED 9-12-2003 IS SET ASIDE AND INSTEAD, THE ORDER PASSED BY THE TRIAL COURT IS RESTORED. WE MAKE IT CLEAR THAT IF THE DEFENDANT HAS A CASE THAT THE SUIT IS BARRED BY TIME, IT WILL BE OPEN TO THE DEFENDANT-RESPONDENTS TO RAISE THAT PLEA D. IN THE WRITTEN STATEMENT, WHICH PLEA, IF RAISED, WILL BE EXAMINED BY THE TRIAL COURT ON ITS OWN MERITS.

7. THE APPEAL STANDS DISPOSED OF IN THE ABOVE SAID TERMS.

8. THE PARTIES THROUGH THEIR RESPECTIVE COUNSEL ARE DIRECTED TO APPEAR BEFORE THE TRIAL COURT ON 26-9-2005.